End of the Conscience Clause: Call for Change

Jan Steen: The Doctor's Visit // Public domain

A survey published on July 5 by OKO.Press revealed a stark perspective: 65% of respondents firmly advocate for the abolition of the conscience clause in public healthcare facilities, while a mere 25% support its continuation.

The implications of this data point to a significant transformation in recent months and years. This shift can be attributed firstly to the contentious “verdict” of the self-proclaimed Tribunal of Julia Przyłębska, which gravely restricted the abortion act, and secondly, to the tragic deaths of pregnant Polish women.

These deaths were exacerbated by doctors in hospitals who, hindered by the unclear legal landscape, hesitated in providing vital care and preserving lives. Against the backdrop of these harrowing events and discussions, the notion of the conscience clause – granting doctors the right to refuse medical procedures conflicting with their personal values or religious beliefs – emerges as a central thread.

I am speaking on this issue as a publicist whose view on the clause has changed over the past year.

As a liberal, rooted in the foundation of individual human freedom, I was in favor of the possibility of using a doctor’s conscience clause. Individual freedom – freedom of conscience, religion, and belief – are indispensable elements of individual freedom and should only be limited by law only when they conflict with the freedom of another individual.

Therefore, if the healthcare system in Poland were constructed so efficiently and effectively that the use of the conscience clause by a given doctor was reliably compensated by the system, providing the patient with full access to necessary medical procedures through another doctor, it would not be necessary to limit anyone’s freedom. Systemic solutions would ensure fundamental freedom in the form of the right to health and life for patients, as well as – though less important – freedom of conscience for medical personnel.

The “clause compromise” would therefore be such that the doctor (as well as the nurse or midwife) would have the right to refuse to carry out a medical procedure that would affect his faith or values, provided that the system (read: hospital, clinic or hospital/clinic network) is able to immediately appoint another doctor who will perform the procedure.

In such realities, liberals may and probably should even be on the side of the existence of the conscience clause. However, the remark that deeply religious doctors, already at the stage of specialization, could voluntarily choose numerous fields of specialization other than gynecology, is not a pointless remark – on the contrary, it is a quite justified one. After all, vegans do not work as butchers, Protestants do not aspire to become Catholic priests, socialists do not seek jobs on the Confederation’s electoral staff, and Coloradoists do not aspire to the role of pilots.

The problem with the “clause compromise” is that it does not work in Poland; it does not exist. Instead of immediately providing patients with the care of a physician replacing the one who invoked the clause, we witness phenomena such as:

  1. Entire hospitals using the conscience clause globally, which is an extreme mental aberration because conscience (and the resulting rights or freedoms) can only belong to human individuals, not institutions or enterprises – these can only have “policies”, and this is an absolute obligation to comply with the principles of law. The hospital must simply have doctors who do not use the conscience clause on their staff as soon as it is reported that any of the staff wishes to have a conscience clause, allowing them to use another doctor.
  2. Embezzlement, manipulation, and diversion used against the rights of patients with indications, the right, or the desire to terminate a pregnancy – a clear reference to the clause is refused to avoid the obligation to appoint a substitude doctor, leading to delays in procedures so that, for example, the legal deadline for abortion expires.
  3. Open refusal to appoint a substitute doctor by both the doctor invoking the clause and the administration of medical facilities attempting to evade this responsibility.
  4. Refusing to carry out tests that may provide indications for medical procedures covered by the clause.
  5. Moral degeneration in the form of the same doctor using the conscience clause during working hours in a public facility while performing the same procedure for a fee in a private facility.
  6. Pushing away and even eliminating doctors known for invoking the conscience clause from patient care.
  7. Doctors’ fear of prosecutors, leading them to invoke the clause not out of beliefs, but for “procedural security,” i.e., simple cowardice.
  8. A general failure of the healthcare system in Poland.

In these realities, the use of the conscience clause inevitably conflicts with the right to protect the health and life of sick people. Therefore, following liberal ideological guidelines, the protection of higher-order freedom justifies the restriction or elimination of less important freedom. This less important freedom, dear doctors, is your conscience clause.

As the son of two doctors, I understand quite well the colossal responsibility that this profession places on people and their minds. I do not believe there is a more difficult profession. I have always, even instinctively, supported the postulates of the medical community, especially since the state’s negligence in healthcare policy in Poland is significant, and efforts to improve it have been ineffective for decades.

However, fuel has been added to the fire. Unless there is a deep, systemic change in healthcare, there is no room for the conscience clause of doctors in Poland. If you do not like it, change your specialization. For example, we are in need gerontologists. Those who allow harm to patients because “God made them do it” will – at the latest after a change of power – find themselves in prison, and no one will shed a tear for them.

The article was originally published in Polish at: https://liberte.pl/kres-klauzuli/

Translated by Natalia Banaś

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